I still remember the day I started my internship in the legal department of an Art Gallery in a posh colony in New Delhi. At that time, specialization in art law seemed like a stretch of imagination at best. My colleagues and I saw myself as a commercial lawyer who happened to work at an organization that was in the business of selling art.
However, over time, I’ve come to appreciate its profound impact on the lives of artists and the preservation of creative expression.
This article delves into the intricacies of copyright law, moral rights, and resale rights, shedding light on the legal protections afforded to artistic works in the digital age.
Legal Protection for Art
The argument favoring legal protection for artistic works is that without legal protection and control over the exploitation of the work, there would be less incentive for musicians, writers, or artists to invest time and effort in creative work. Protection of the rights of the artist is therefore automatically provided by law in most of the world, thanks to the Berne Convention, without the need for any formality or process, in three ways:
- Copyright law prevents the artist’s work from being copied or reproduced without the artist’s consent.
- Moral rights allow the artist to avoid using or producing the work in ways that the artist disapproves.
- The artist’s resale right enables the artist to receive a percentage of the artwork’s sale price each time it is resold.
We will examine each of these in turn.
1. Copyright law
Copyright is the central pillar for the legal protection of Artwork. It grants the authors a bundle of rights that seek to protect their economic interests and moral rights.
What types of artwork are protected by copyright?
Original artworks, such as Andy Warhol’s Soup Can screen prints, are protected by copyright as long as they pass the originality test. From the vibrant strokes of paintings to the captured moments in photographs, the spectrum encompasses:
- Graphic Works: Embracing paintings, drawings, and engravings.
- Photographs: Frozen glimpses of time immortalized through the lens.
- Sculptures: Three-dimensional masterpieces that defy conventional dimensions.
- Ready-Made Art: Transformative works challenging the very essence of art itself.
- Collages: Mosaics of creativity formed through the amalgamation of diverse elements.
- Works of Artistic Craftsmanship: Showcasing the skilled hands of artisans in crafting unique pieces.
Navigating the Richard Prince Case
The intricate dance between appropriation and originality takes center stage in the case of Richard Prince. His re-photographing endeavors, marked by subtle changes, ignite debates on fair use and transformative interpretation.
Duration of Copyright Protection
The temporal veil of copyright protection envelops artworks, typically 70 years after the artist’s demise. A pivotal moment in 1996 when we witnessed an extension of copyright duration, resurrecting previously expired works into the protective arms of intellectual property.
The Ownership Tapestry
Ownership, akin to a delicate thread, weaves through the art world. Acquiring an artwork doesn’t necessarily bestow copyright unless explicitly transferred by the artist. The interplay of employment and commission agreements shapes ownership landscapes, underscoring the importance of written agreements.
Treading the Tightrope: Copyright Infringement
The delicate balance of copyright is disrupted by infringement, manifesting when an individual reproduces, issues, rents, or communicates a copyrighted work without permission. Importing infringing copies or facilitating their creation may lead to legal consequences.
Fair Dealing: Painting Within the Boundaries
Within the artistic legal framework, fair dealing delineates specific circumstances allowing the reproduction of copyrighted works. Private use, research, criticism, review, news reporting, and the realm of parody emerge as permissible realms.
Implied Licenses: Silent Agreements in the Artistic Symphony
Implied licenses, akin to silent agreements, may lurk within contractual relationships. Courts, however, tread cautiously in implying terms, restricting such permits to the essentials aligned with the contract’s purpose.
Challenges on the Internet: A Digital Odyssey
The digital realm presents a labyrinth of challenges in copyright enforcement. Identifying infringers becomes a Herculean task, compounded by soaring legal costs and the complexity of executing judgments.
2. Moral Rights
In the intricate world of artistic creation, the legal tapestry extends beyond copyright to encompass moral rights. These rights are granted to artists, ensuring due recognition and protecting against unauthorized use or distortion of their creations. Let’s delve into the nuances, origins, and challenges of moral rights in the digital era.
Origin and Evolution: Guardians of Art: A French Legacy
Moral rights originated in non-common law countries like France, where artists and their descendants are considered guardians of artwork and the artist’s oeuvre. In common law countries like the UK, the focus has traditionally been on the licensed copyright owner, leading to terminology distinctions.
Unraveling Moral Rights
- Right of Paternity: Claiming Authorship
The Right of Paternity grants artists the right to be identified whenever their work is commercially published, exhibited, or included in a broadcast or film. These rights extend beyond traditional artworks to encompass sculptures, architecture, films, and more.
Temporal Constraints
Asserting the right of paternity is crucial, requiring the artist to claim authorship. This necessity underscores the artist’s active role in safeguarding their identity, reinforcing the symbiotic relationship between the creator and their creation.
- Right of Integrity: Protecting Against Derogatory Treatment
The Right of Integrity shields artists from derogatory treatment of their work, encompassing distortions or alterations that harm the artist’s reputation. This right applies to commercial publication, public exhibition, and public issuance of copies.
Defining Derogatory Treatment
Derogatory treatment includes any alteration or adaptation that amounts to distortion or mutilation, emphasizing the importance of presenting artworks in their entirety and without modification.
Unanswered Questions
While the law addresses physical alterations, it remains silent on contextual concerns. The display alongside demeaning works or controversial exhibition titles poses unexplored legal questions.
- Right of False Attribution: Preserving Authentic Authorship
Under the Right of False Attribution, individuals have the right not to have a work falsely attributed to them. These rights extend to literary, dramatic, musical, and artistic works and films.
Conditions for Infringement
Infringement requires both a false attribution and the attributor’s knowledge of its falseness. This suitable safeguards artists against dishonest traders leveraging their name for works not created by them.
Collaborative Works and Joint Authorship
In joint authorship scenarios, each author maintains separate rights of paternity and integrity. However, each co-author must independently assert their paternity rights.
Duration of Moral Rights
While paternity, integrity, and privacy rights persist as long as copyright exists, the right to object to false attribution expires, varying from jurisdiction to jurisdiction, for instance, 20 years after the artist died in the UK.
Enforcement of Moral Rights: A Spectrum of Remedies
Remedies for moral rights breaches range from injunctions to damages. Seizure and detention of infringing copies are authorized, offering artists a dynamic range of legal tools for protection.
3. Resale Rights
The artist’s resale right, known as ‘Droit de Suite’ in France, addresses the concern that artists might not benefit from significant sales of their artworks after the initial sale. Initially resisted by many stakeholders, resale rights were incorporated into UK law through the Artist’s Resale Right Regulations (ARR) 2006. This right, mandated by the European Parliament and Council Directive (EC) 2001/84, ensures artists receive a percentage of proceeds from subsequent sales.
Artist’s Resale Royalty in the United Kingdom
Sectors Affected
The artist’s resale royalty, applicable for the artist’s lifetime and 70 years after that, primarily affects sales of modern, postwar, and contemporary art, constituting about 75% of the UK fine art market.
Types of Artwork Covered
ARR applies to copyright-protected graphic or plastic artworks like pictures, paintings, etc. Unlimited posters and prints are not covered unless they are part of a limited edition.
Nationality of the Artist
To qualify for resale right, the artist must be a national of an EEA state or certain listed countries outside the EEA.
When is the Royalty Payable?
Royalty applies to the secondary market, not the first transfer. It is payable on each subsequent sale, at least 1,000 EUR triggered by a sale.
What Type of Resale Triggers the Royalty?
A sale must be a contract of sale for money consideration, conditional or absolute, by a buyer, seller, or agent acting in the art business. Exemptions exist for first sales or sales within three years at 10,000 EUR or less.
How Much is Payable?
Royalty is a percentage of the sale price, capped at 12,500 EUR. It varies on a sliding scale, e.g., 4% for up to 50,000 EUR.
Who is Entitled?
The artist or, after their death, the estate or successors in title is entitled. Resale right cannot be waived, assigned, or shared.
Right to Information
Those entitled have the right to information about sales prices, enforceable through legal action if not provided.
Liability to Pay
Sellers, their agents, or buyers’ agents are jointly liable. Auction houses may shift the financial burden to buyers.
When is the Royalty Payable?
Payable on sale completion; withholding allowed until evidence of entitlement.
Collection of Royalty
It is collected through designated collecting societies, even if not appointed by the artist.
Problems with the Resale Royalty
Controversies include being a disincentive for sellers, benefiting mainly established artists, and operational difficulties in tracking and enforcement. Considerations for potential reform include charging royalties as a percentage of profit and addressing challenges in policing private transactions.
Conclusion
In navigating the intricate canvas of copyright, moral rights, and resale rights, the legal protections surrounding artistic works unfold as a crucial tapestry in the digital age. From the foundational shield of copyright, safeguarding against unauthorized reproduction, to the guardianship of moral rights, ensuring due recognition and protection against distortions, and finally, the empowerment of artists through resale rights beyond the initial sale—each thread contributes to the resilient fabric of art law.
As the art world continues to evolve, these legal nuances stand as pillars, providing artists with the assurance that their creations are not only protected but also valued. The interplay between legislation and the dynamic landscape of artistic expression creates a vibrant ecosystem where the rights of creators are not just acknowledged but actively defended.
In the digital era, where the boundaries between originality and appropriation are continually tested, understanding and upholding these legal frameworks become paramount. This article serves as a guide through the labyrinth of art law, shedding light on the complexities that define and safeguard the realm of artistic expression.
Sources:
- Gottlieb, N. L. E. (2010). Free to Air? Legal Protection for TV Program Formats. https://core.ac.uk/download/234141158.pdf
- Martin Wilson, Art Law and the Business of Art, 2nd Ed
Resale rights are a crucial aspect often overlooked, and this article does an excellent job of dissecting its intricacies, from when and how royalties are payable to the types of art covered. The challenges and controversies surrounding resale rights open up a larger discussion about their feasibility and equity in the art market. I’m left pondering the evolving role of technology, particularly the internet, and its impact on copyright enforcement.
The Richard Prince case highlighted a delicate balance between appropriation and originality. I’m curious about how this lawsuit might influence the future understanding of fair use in transformative interpretations, especially considering the digital realm’s vastness.
While an artist’s resale rights benefit the artist, the operational difficulties in tracking and enforcement pose real problems. Are there potential reforms that could address these issues while ensuring equity across the art market?
The discussion around copyright law and the different forms of art it protects, from paintings to sculptures and photographs, is eye-opening. Understanding the nuances and the Richard Prince case’s complexities deepens the insight into fair use and copyright duration. The breakdown of each aspect provides a clear understanding of the protection artists receive and the challenges they might encounter in the digital age.